The revised draft of the anti subversion law, which defines state secrets more precisely and removes penalties for preparatory acts for sedition and theft of state secrets, has entered into deliberation at the Legislative Assembly.

The jail sentence of between 15 and 25 years proposed for committing crimes of treason, secession and subversion against the Central People’s Government, however, remains unchanged in the draft as they were “serious violent crimes”, Florinda Chan, the Secretary for Administration and Justice said yesterday.

The SAR administration released the amended draft of the national security law and introduced major changes to the media at the government headquarters, following the end of the public consultation which took place between October 22 and November 30.

Among the 784 pieces of opinion collected from individuals and organisations, about 88.4 percent favoured the enactment of the law, while less than 2.6 percent held an opposing stance. The remainders were ambivalent.

Theft of state secrets

Of the four most significant changes, one was the revision of the article in relation to theft of state secrets which had attracted spotlights mainly from the media industry due to concerns that their jobs could put them at risk of being convicted.

In the revised version of the draft, it is defined that state secrets must be documents, information or items “which have already been declared as confidential” before the theft takes place.

According to Florinda Chan, in order to avoid public misunderstanding, the definition of state secrets was refined so that concerns of whether such “state secrets” would be confirmed as confidential only after they were stolen could be eliminated.

In addition, the article states that Macau’s judicial institutes can obtain certifications from the Chief Executive or the Central People’s Government to prove that the documents, information or items have already been identified as state secrets before they are stolen.

On the other hand, although the opinions said that “public interest” should be added in the article as a means to defend against the crime of revealing state secrets and also protect press freedom, the Secretary argued that the draft itself had already exempted media workers from constituting the crime.

In the article, it is regulated that only people “who have the obligation to keep hold of state secrets because of their job duties”, that means civil servants, will be sentenced for two to eight years if found guilty of exposing state secrets or allowing unauthorized persons to have contacts with state secrets.

Chan also said that the Penal Code, which also applied to the anti subversion law, already permitted defendants to cite personal rationale to defend against their accusations.

Meanwhile, the Secretary said media workers’ normal daily agendas of interviewing and reporting would not constitute the crime of “spying into state secrets”, which referred to “deliberately spy on state secrets by using illegitimate channels and means” in the draft.

Penalties for preparatory acts

The original draft of the national security law had a separate article that gave a jail sentence of up to three years for people engaging in the preparation process of treason, secession, subversion against the Central People’s Government, sedition or theft of state secrets.

However, in the second version, the government decided to abolish the individual article and to list the three-year penalty in the content of each of the main articles regarding the anti national security crimes.

The Secretary said the opinions collected deemed preparatory acts should not be seen as an “individual crime” but should be “regulated together with the main crimes of anti subversion”.

In contrast to the original draft, the SAR government proposed to remove preparatory acts’ punishments for crimes of sedition as well as theft of state secrets, but to retain those for treason, secession and subversion.

According to Chan, the move was made after taking into account the public concern that having a jail sentence for preparatory acts for sedition would suffocate freedom of speech in society.

At the same time, she said withdrawing the penalty for preparatory acts for theft of state secrets was to avoid contradiction within the article.

It was because if such preparatory acts would constitute a crime, Chan said an “unjustified” scenario might occur – a person had stolen state secrets but did not harm or destroy national security interests, and thus he or she could not be convicted, whilst another person, who had not yet stolen the state secrets but was in the preparation process, was sentenced to jail.

Open trials

The revised version of the draft includes a newly added article that clearly states that all legal proceedings involving any of the crimes in the national security law must be open to the public.

However, only if a trial relates to charges of theft of state secrets, Article 12 says that judges will have the authority to decide whether or not to open the hearings to the public in order to “prevent national security interests from being jeopardised”.

Mitigating penalties

In the amended draft of the anti subversion law, Chan said another new article had also been added which would give offenders a chance to have the severity of their jail sentences reduced.

That is, if a person can reduce the devastating impact at a certain level or cease such crises before the crime is committed, the judge may hand out a lighter sentence or even set free, the offender according to Article 11 of the law.

According to Chief Executive Edmund Ho Hau Wah at the press conference yesterday, the population of Macau was “highly concerned” about the enactment of the national security law which was reflected in the number of opinions collected during the public consultation period.

He also said the Macau people had made “important contributions” to the improvement of the draft and the “smooth process” of the consultative work, which showed their “patriotism towards mainland China and responsibility to national security”.